2016 (7) TMI 891 - AT - Central Excise

Validity of Confiscation of material under Rule 25 of CER when the appellant is paying duty under Section 3A of the Central Excise Act read with Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008. - Held that - The appellant was obligated to explain the licit source of purchase of the packing materials lying in stock. It is evident that the appellant have not made any attempt to explain before the Courts below nor have filed any such explanation before this Tribunal. In this view of the matter I uphold the order of confiscation of the packing material. So far redemption fine is concerned I reduce the same to the amount of duty evaded at 1, 42, 984/-. As the appellant have himself not removed the excisable goods from the factory of manufacture I hold that no penalties are leviable under Rule 25 of Central Excise Rules 2002. So far the penalty imposed by Id. Commissioner under Rule 26 of Central Excise Rules 2002 is concerned I set aside the same as the same have been imposed without any notice to the appellant and/or opportunity of hearing. - Decided partly in favor of assessee.

Summary

Issues involved:
- Confiscation of packing materials
- Imposition of penalty under Rule 26 by Commissioner (Appeals)
- Confiscation upheld and penalties set aside

Confiscation of packing materials:
The case involved the appellant, a manufacturer of pan masala and gutka, appealing against an order passed by the Commissioner (Appeals) regarding the confiscation of packing materials. The appellant paid tax based on production capacity under specific rules. A search revealed a stock of packing materials in the factory, suspected to be clandestinely purchased. The appellant contested the show cause notice, arguing that the provisions of Rule 25 were not applicable to them. The Revenue alleged clandestine purchases and clearance of packing materials, leading to confiscation and penalty imposition. The appellant challenged the confiscation, citing lack of evidence and non-applicability of Rule 25. The Tribunal upheld the confiscation due to the appellant's failure to explain the source of purchase, reducing the redemption fine but setting aside penalties under Rule 25.

Imposition of penalty under Rule 26 by Commissioner (Appeals):
The Commissioner (Appeals) upheld the confiscation under Rule 25 but imposed a penalty under Rule 26, which the appellant contested in the appeal. The issue before the Tribunal was whether the penalty under Rule 26 was rightly imposed and if the confiscation was correctly upheld when penalties under Rule 25 were deemed unsustainable. The appellant argued against the penalty, citing lack of verification of stock and reliance on presumptions. The Tribunal considered the arguments, setting aside the penalty under Rule 26 due to lack of notice and opportunity of hearing for the appellant.

Confiscation upheld and penalties set aside:
After considering the contentions from both sides, the Tribunal upheld the confiscation of packing materials due to the appellant's failure to explain the source of purchase. The redemption fine was reduced, penalties under Rule 25 were set aside, and the penalty under Rule 26 was also overturned. The Tribunal emphasized the appellant's obligation as a manufacturer to maintain proper accounts of taxable inputs and the lack of effort in providing explanations throughout the proceedings. The appeal was allowed in part, with the confiscation upheld, redemption fine reduced, and penalties under Rule 26 and Rule 25 set aside.